Watch out if you’re contemplating a layoff that could involve employees who have recently returned from active duty in the armed forces.

If those employees missed any training, and you plan to use training as one of the criteria for deciding which employees to retain, you run the risk of violating the Uniformed Services Employment and Reemployment Rights Act (USERRA).

That’s because using lack of training as a negative factor means you are counting the time off against the returning employee.

Recent case: Douglas Milhauser worked as a maintenance technician at Minco Products in Minneapolis. He was also a member of the Air Force Reserve who had twice been called to active duty. On the day he returned to work from his last deployment, he was terminated as part of a planned reduction-in-force.

He sued, alleging USERRA violations.

Cross-training factored into Minco’s decisions on which employees it would terminate and which it would keep. That’s a common and sensible approach to reducing a workforce. But in this case, Minco had to admit that Milhauser had missed a lot of cross-training because of his military service.

The court sent the case to trial since military service reduced Milhauser’s ability to train and was therefore arguably a significant factor in his termination. (Milhauser v. Minco Products, No. 09-3379, DC MN, 2010)

Advice: Either allow service members to make up training or don’t consider it when ranking employees for RIF purposes.